Opinion
3:23-CV-466-DRL-MGG
03-18-2024
COURTNEY HOLLOWAY, Plaintiff, v. SOUTH BEND CITY OF, et al., Defendants.
REPORT AND RECOMMENDATION
Michael G. Gotsch, Sr. United States Magistrate Judge
This Report and Recommendation is one of two orders that the Court is issuing contemporaneously in this matter. Here, the undersigned recommends dismissal of this action because of Plaintiff's ostensible abandonment of her claims. The companion Order resolves the Defendants' motion to compel and directs Defendants to file a statement of expenses.
On January 2, 2024, Defendants filed their motion to compel Plaintiff to produce responses to their First Set of Interrogatories and First Set of Requests for Production of Documents, both served on August 31, 2023. [DE 29]. Plaintiff filed no response to Defendants' motion to compel despite being afforded ample time to do so. See N.D. Ind. L.R. 7-1(d)(3)(A).
On January 29, 2024, Plaintiff's counsel's motion to withdraw his appearance was granted leaving Plaintiff to proceed pro se in this litigation. [DE 32 at 3]. In the same Order, the undersigned ensured that Plaintiff was aware of the status of the litigation by directing the Clerk to mail the Order, the docket sheet, and a copy of the pending motion to compel to Plaintiff. [Id.]. Plaintiff was also ordered “to show cause by February 16, 2024, for her failure to respond to Defendants' discovery requests and her attorney's attempts to contact her.” [Id.]. With no response from Plaintiff, the undersigned issued a second order on February 23, 2024, affording Plaintiff one last chance to comply with the January 29th Order, and the February 23rd Order, by extending the deadline to show cause regarding the discovery requests until March 8, 2024. Notably, Plaintiff was explicitly advised that if she failed to comply with both orders, Defendants' pending motion to compel [DE 29] would be granted, expenses for the motion would be awarded to Defendants, and the undersigned would recommend to the presiding judge dismiss this case with prejudice pursuant to Fed.R.Civ.P. 41(b). As of this date, Plaintiff has not complied with the Court's Orders.
By separate order, Defendants' motion to compel is being granted and fees are being awarded. Fed.R.Civ.P. 41(b) authorizes involuntary dismissal of a plaintiff's case for failure to prosecute the claim or to comply with court orders. Given Plaintiff's failure to comply with the Court's orders, it appears that she has abandoned her case. Accordingly, the undersigned RECOMMENDS that this case be DISMISSED WITH PREJUDICE pursuant to Fed.R.Civ.P. 41(b).
NOTICE IS HEREBY GIVEN that within fourteen (14) days after being served with a copy of this recommended disposition a party may serve and file specific, written objections to the proposed findings and/or recommendations. Fed.R.Civ.P. 72(b). FAILURE TO FILE OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER.
Should the Court decide to dismiss this case after considering any objections filed pursuant to Fed.R.Civ.P. 72(b), the undersigned further RECOMMENDS that the final judgment of dismissal be held in abeyance pending the Court's impending decision ascertaining the proper among of the Rule 37 award of expenses to Defendants related to their motion to compel. [See DE 35]
Lastly, Defendants' Motion to Extend Fact Discovery Deadline [DE 33] is DENIED AS MOOT upon entry of this Report and Recommendation..
This denial is without prejudice, and Defendants may renew their motion to extend the fact discovery deadline depending upon procedural developments.
SO ORDERED.